5.3 Development, NHRIs and Culture14
“Culture is one of the two or three most complex words in the English language. This is so partly because of its intricate historical development…but mainly because it has now come to be used for important concepts in several distinct intellectual disciplines and in several distinct and incompatible systems of thought.”15
International instruments recognise culture as a human right and as a means through which people express their humanity and add meaning to their lives. Culture is also a powerful tool in promoting development as local cultures possess rich traditions, practices, and values that are protected by international instruments.
There is great potential for NHRIs to advance cultural rights. Sustainable societal transformation does not emerge solely from models or values that are imported from outside of a given regional context. Local cultures also offer insights into potential strategies for advancing human rights. NHRIs can play a key role in fostering connections between these international and local approaches to development.
However, culture, traditions and religions can also become the source of discrimination and of harmful practices. For example, cultural practices that discriminate against women and girl children are widespread and can be highly divisive when religious observance, ethnic identity and established tradition confront women’s equality claims. Similarly, Lesbian, gay, bisexual, or transgender (LGBT) persons often experience significant social stigma, persecution and sometimes criminal victimisation in the name of religion, morality or tradition.
Inequality in the enjoyment of human rights by certain vulnerable groups, notably women, indigenous peoples and many others is often deeply embedded in tradition, history and culture, including religious attitudes. While culture is obviously central to economic, social and cultural rights, it also poses unique and particular difficulties for a range of rights: equality between women and men, for example, or for the way in which particular minorities are treated, or how a receiving State treats an influx of migrants from a neighbouring country.
Peer pressure, social conformity and pressure from elders are powerful elements of culture, and may affect attempts to eliminate harmful practices. Using the example of female genital mutilation, peer pressure should not be underestimated in programs and awareness campaigns, as young girls feel pressure to undergo the rite to prevent social exclusion. The practical implications for NHRIs are that they should focus on first ascertaining the cultural rationale, and working with social and cultural leaders and their communities to help in changing these practices.
The following is a list of important international documents related to cultural rights.
The UNESCO Universal Declaration on Cultural Diversity (2001) acknowledges cultural heritage as a basic part of how human beings identify and express themselves. Specific examples are: oral expressions and traditions, including language, performing arts, social practices, rituals and festive events, knowledge and practices concerning nature and the universe; traditional craftsmanship and music; cultural spaces: places where popular and traditional cultural activities occur.
Referred to as the “UNESCO Convention”, cultural diversity is expressed here not only through the varied ways in which the cultural heritage of humanity is expressed, augmented and transmitted, but also through diverse modes of artistic creation, production, dissemination, distribution and enjoyment, whatever the means and technologies used.
The UNESCO Convention also acknowledges and addresses the tension that sometimes exists between culture and human rights:
Cultural diversity can be protected and promoted only if human rights and fundamental freedoms, such as freedom of expression, information and communication, as well as the ability of individuals to choose cultural expressions, are guaranteed. No one may invoke the provisions of this Convention in order to infringe human rights and fundamental freedoms as enshrined in the Universal Declaration of Human Rights or guaranteed by international law, or to limit the scope thereof.
Cultural rights or religious norms cannot be invoked to deny or violate human rights and fundamental freedoms. As such, “cultural relativism” is not an excuse to infringe upon human rights. It is for this reason that CEDAW obliges States to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices, customs and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.
The Committee on Conventions and Recommendations is a key instrumental body in monitoring the implementation of the UNESCO Conventions. Efforts are currently being carried out to explore greater synergies between this mechanism and the UN Human Rights System. The Committee on ESCR issued a General Comment on the right to take part in cultural life (art. 15 ICESCR) in December 2009.
UN Human Rights Committee’s General Comment No. 28 provides a critical link between the International Covenant on Civil and Political Rights (ICCPR), cultural rights, and women’s issues, specifically addressing the role of NHRIs in matters of tradition, history and culture:
It is in this framework of interdependence and careful weighing of relative rights and obligations that NHRIs should address cultural issues in the context of women’s equality rights and ESC rights in particular. [Women’s] inequality …is deeply embedded in tradition, history and culture, including religious attitudes… The subordinate role of women in some countries is illustrated by the high incidence of prenatal sex selection and abortion of female foetuses. States parties should ensure that traditional, historical, religious or cultural attitudes are not used to justify violations of women’s right[s]. States parties should furnish appropriate information on those aspects of tradition, history, cultural practices and religious attitudes which jeopardize, or may jeopardize, compliance with Article 3 [of the ICCPR], and indicate what measures they have taken or intend to take to overcome such factors.
(ICCPR Human Rights Committee, General Comment No. 28: Equality of rights between men and women (Article 3) (29/03/2000. CCPR/C/21/Rev.1/Add.10, General Comment No. 28).
Women’s active participation in the interpretation of culture was affirmed by an international group of experts in the Fribourg Declaration on Cultural Rights. Women should have an active role in interpreting and communicating their own traditions and cultural perspectives, and to ensure that their voices are given equal weight in understanding history, religion and tradition. Culture and equality can be balanced, rather than placed in opposition. In an equality framework, women are part of the process of defining the delivery of social rights in a culturally sensitive way.
NHRIs have an important role in addressing these changes and social attitudes through public education and promotion programs, as well as through their protection mandate. UNCTs can, in turn, support NHRIs by providing NHRIs with basic information about the above documents and their implications for human rights.
Despite their interrelatedness, the links between equality and culture – one of the most difficult issues, especially where women’s issues are concerned – received little attention, at least until the early nineties. This has been changing, however, as NHRIs have sought to reframe the issues so as to draw on context and local realities to find innovative solutions to traditional problems, and developed new theoretical perspectives on the topic. NHRIs are playing an important role in navigating these difficult waters. The following case study demonstrates how the Kenya National Commission on Human Rights used a strategy that treated culture as an opportunity for reform rather than an obstacle to progress.
Case Study: Kenya National Commission on Human Rights16
Conventional wisdom views cultural practices as a key obstacle to the realization of human rights. But recent work of the Kenya National Commission on Human Rights (KNCHR) demonstrates that in fact many traditional cultures had systems that ensured the protection and care of the most vulnerable members of society such as widows and orphans. These structures and systems have over the years been ignored or manipulated in ways that perpetuate human rights violations.
The KNCHR believed there to be a need to revive and encourage cultural structures and practices that can be used to protect the vulnerable in society, especially women and children. There is need to breathe life into known but little used alternative methods and traditional cultural safety nets, which have since time immemorial been used to redress disputes and prevent human rights violations.
Using cultural frameworks to address human rights and development is imperative: in spite of the protection offered by national laws and formal institutions, many vulnerable members of society are unable to seek redress from the mainstream legal justice system in their claim for their rights. The formal legal system has by and large worked to the detriment of the vulnerable in society in regard to the protection and enforcement of their human rights. In the case of land for example, which is so critical to securing livelihoods, women’s share of land ownership is a meagre 5%.
Why deal with traditional structures?
Cultural institutions form the first line of governance structure in the lives of many rural communities in Kenya. The majority of families in the country conduct their transactions on issues such as ownership and inheritance of property in accordance with customs. To effectively intervene in matters relating to human rights, one must therefore address issues relating to customs and traditions.
Human rights defenders need to dialogue with elders; they need to identify and work with cultural structures that are supportive of human rights and development. Since cultural institutions are a real and present structure in Kenyan society it is important to acknowledge this and to work with them in addition to formal structures.
This is not to downplay the role of formal structures. Rather, there is a need to recognise that, whereas the legal and formal structures are important, they are not accessible to the majority. Therefore, insisting on only working with them amounts to the marginalisation of those unable to access them. We believe that only a multidimensional approach in addressing human rights and development will help to achieve the realisation of ESC rights for the most vulnerable.
The Project Experience in Luo Nyanza
The KNCHR in partnership with Health Policy Initiative (Futures Group) and the Luo Council of Elders (Luo is one among several Kenyan communities) has been involved in “groundbreaking” work under its women’s property and inheritance rights project that challenges the status quo regarding culture and human rights.
The project aims to apply cultural norms to strengthen the protection of the property inheritance rights of widows and orphans in the context of the HIV/AIDS pandemic.
Those knowledgeable in the culture and traditions of the Luo are aware that the current practices of disinheriting widows and orphans of their land and property are not part of the Luo culture. Traditionally, land belonged to the wife and the children; men had no right to impose their will on land use.
This is a case where traditional culture provides protection to vulnerable groups and is therefore an ally for development. It also promotes debate about negative practices within cultural institutions that may be harmful to human rights and development.
Achievements:
- A documentation centre was set up in the town of Kisumu for all of the Luo in the province of Nyanza
- A documentation officer and community liaison officer were hired
- A documentation tool for identifying cases for relocation was developed and documentation began in November 2006
- By mid-March 2007, a total of 76 cases had been documented and 21 others were referred to other local organizations for legal assistance. The tool identified different needs of the widows including materials for putting up houses; transport to go back home and carry household materials; court fees to pursue documents of administration of estates, marriage certificates, title deeds, and taking orphans to school, among others
- Guidelines on the relocation fund were developed and ready by mid-March 2007. The guidelines included the following elements: the project background, a description of the fund and who could benefit from it, the types of assistance that the fund could support, and the levels and nature of support, to name a few
- The development of a booklet on Luo culture and the rights of women to own and inherit
- Property was distributed
14 This section is adapted from Equality for Women: A Handbook for NHRIs on Economic, Social and Cultural Rights. Equitas (2008).
16 This section is adapted from Equality for Women: A Handbook for NHRIs on Economic, Social and Cultural Rights. Equitas (2008).